Document Type

Case Summary

Publication Date

1-1-2005

Case Synopsis

Troy Anthony Foster, appellant, was charged with four counts of sexual assault and one count of kidnapping. A jury found Foster guilty of three counts of sexual assault and acquitted him on one count of sexual assault and of kidnapping. Foster appealed his conviction asserting five assignments of error. The Nevada Supreme Court rejected Foster’s contentions concluding in part the evidence presented at trial was more than sufficient to sustain the jury’s verdict. Foster then filed a post-conviction petition for a writ of habeas corpus in district court, claiming ineffective assistance of both trial and appellate counsel. The district court appointed counsel to represent Foster and conducted an evidentiary hearing. On January 28, 2004 the district court entered an order rejecting all of Foster’s claims and denying the petition for a writ of habeas corpus. Foster again filed an appeal to the Nevada Supreme Court asserting a number of claims of error in the district court’s denial of Foster’s post-conviction petition for a writ of habeas corpus. Although Foster asserted a number of claims, the Nevada Supreme Court focused primarily on Foster’s claim that his Sixth Amendment right to effective assistance of counsel was violated. Foster claimed his counsel failed to assign any error on direct appeal with regard to the trial court’s finding that defense counsel violated Batson v. Kentucky.2 The Nevada Supreme Court affirmed the district court’s order denying Foster’s postconviction habeas petition. The court concluded Foster’s contentions that the district court erred in rejecting his claims of ineffective assistance of trial and appellate counsel were without merit. The court reasoned that Foster had failed to show the prejudice necessary to establish any entitlement to relief on any of his claims relating to his trial counsel’s failure to object to the trial court’s Batson decision and remedy or appellate counsel’s decision to assert any claims of error on appeal with the trial court’s remedy of the Batson issue. The court further reviewed the remainder of Foster’s claims of error in connection with the denial of the post-conviction habeas corpus petition and thereto found that Foster failed to show the prejudice necessary to establish any entitlement to relief on the basis of ineffective assistance of counsel. However, the court did reserve for a more appropriate case a more definitive decision of what remedy best serves to vindicate in Nevada courts the multiple interests that Batson protects.

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